Citation Nr: 0840180
Decision Date: 11/21/08 Archive Date: 11/25/08
DOCKET NO. 06-11 503 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska
THE ISSUE
Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from December 1954 to November
1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2005 decision by the RO
which, in part, denied service connection for hypertension.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. All available evidence necessary for adjudication of this
claim have been obtained by VA.
2. The veteran is not shown to have hypertension at present
which is related to service.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by service nor
may any cardiovascular disease be presumed to have been so
incurred or aggravated. 38 U.S.C.A. §§ 1110, 1131, 1154,
5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must notify the claimant of the information and
evidence not of record that is necessary to substantiate a
claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide. 38 C.F.R. § 3.159 (2008); see also Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006). Such notice must
include notice that a disability rating and an effective date
for the award of benefits will be assigned if there is a
favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159,
3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-
21 (2004) (Pelegrini II).
Prior to initial adjudication of the veteran's claim, a
letter dated in January 2005, fully satisfied the duty to
notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The veteran was notified of the evidence that was
needed to substantiate his claim; what information and
evidence that VA will seek to provide and what information
and evidence the veteran was expected to provide, and that VA
would assist him in obtaining evidence, but that it was
ultimately his responsibility to provide VA with any evidence
pertaining to his claim. See Pelegrini v. Principi, 18 Vet.
App. 112, 120-21 (2004) (Pelegrini II). The veteran was
notified of his responsibility to submit evidence which
showed that he had a disability at present which had its
onset in service or within any applicable presumptive period
subsequent to discharge from service, of what evidence was
necessary to establish service connection, and why the
current evidence was insufficient to award the benefits
sought.
In this case, all VA and private medical records identified
by the veteran have been obtained and associated with the
claims file. The veteran was afforded an opportunity to
testify at a personal hearing, but declined. Based on a
review of the claims file, the Board finds that there is no
indication in the record that any additional evidence
relevant to the issue to be decided herein is available and
not part of the claims file. See Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) [hereinafter Mayfield III].
The Board concludes that any deficiency in the notice to the
veteran or the timing of any notice is harmless error. See
Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding
that even though the Board erred by relying on various post-
decisional documents to conclude that adequate 38 U.S.C.A.
§ 5103(a) notice had been provided to the appellant, the
evidence established that the veteran was afforded a
meaningful opportunity to participate in the adjudication of
his claim, and the error was harmless). Additionally, there
has been no prejudice to the veteran in the essential
fairness of the adjudication. As there is no indication that
any failure on the part of VA to provide additional notice or
assistance reasonably affects the outcome of this case, the
Board finds that any such failure is harmless. See Mayfield
v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other
grounds, 444 F.3d 1328 (Fed Cir. 2006). Based on a review of
the claims file, the Board finds that there is no indication
in the record that any additional evidence relevant to the
issue to be decided herein is available and not part of the
claims file. See Mayfield III.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim, as defined by law.
The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
held that an examination is required when (1) there is
evidence of a current disability, (2) evidence establishing
an "in-service event, injury or disease," or a disease
manifested in accordance with presumptive service connection
regulations occurred which would support incurrence or
aggravation, (3) an indication that the current disability
may be related to the in-service event, and (4) insufficient
evidence to decide the case. In this case, the Board
concludes that an examination is not needed because there is
no persuasive evidence that the claimed condition is related
to service and there is sufficient evidence to decide the
case.
Service Connection: In General
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Service connection may be demonstrated either by showing
direct service incurrence or aggravation or by using
applicable presumptions, if available. Combee v. Brown, 34
F.3d 1039, 1043 (Fed. Cir. 1994).
Direct service connection requires a finding that there is a
current disability that has a definite relationship with an
injury or disease or some other manifestation of the
disability during service. Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542,
548 (1992).
A disorder may be service connected if the evidence of
record, regardless of its date, shows that the veteran had a
chronic disorder in service or during an applicable
presumptive period, and that he still has such a disorder.
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-
95 (1997). Such evidence must be medical unless it relates
to a disorder that may be competently demonstrated by lay
observation. Id. For the showing of chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b).
Disorders diagnosed after discharge may still be service
connected if all the evidence, including pertinent service
records, establishes that the disorder was incurred in
service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946 and a
cardiovascular disease is manifest to a compensable degree
within one year from date of termination of such service,
such disease shall be presumed to have been incurred in or
aggravated by service, even though there is no evidence of
such disease during the period of service. This presumption
is rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2008).
Medical evidence of a "chronic" disease should set forth
the physical findings and symptomatology elicited by
examination within the applicable period. 38 C.F.R.
§ 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A
chronic disease need not be diagnosed during the presumptive
period but characteristic manifestations thereof to the
required degree must be shown by acceptable medical and lay
evidence followed without unreasonable time lapse by definite
diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1
Vet. App. 466, 469 (1991).
An important factor in the factual question of reasonableness
in lapse of time from manifestation to diagnosis under 38
C.F.R. § 3.307(c) is the difficulty in diagnosing the
disability and the strength of the evidence establishing an
identity between the disease manifestations and the
subsequent diagnosis. A strong evidentiary link tends to
ensure the disease is not due to "intercurrent cause" as
set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App.
231, 238 (1993). The lapse in time from manifestation to
diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a
question of fact for the Board to address." Bielby v.
Brown, 7 Vet. App. 260, 266 (1994).
Discussion & Analysis
The veteran contends that he was diagnosed with hypertension
several months prior to his discharge from service and
believes that service connection should be established for
his cardiovascular disease.
Initially, the Board notes that the veteran's service medical
records were apparently destroyed by fire at the National
Personal Records Center (NPRC) in 1973, and are unavailable
for review. The RO was informed by the NPRC in May 2004,
that the veteran's service medical records were fire-related
loss and that there were no data entry cards on file at the
Surgeon General's Office (SGO). Where service medical
records are absent or missing, there is a heightened duty of
the Board to consider the applicability of the benefit of the
doubt, to assist the claimant in developing the claim, and to
explain its decision. The case law does not, however, lower
the legal standard for proving a claim for service
connection. Russo v. Brown, 9 Vet. App. 46 (1996).
The evidence of record includes numerous VA and private
medical records showing treatment for various maladies from
1985 to the present. A private outpatient note dated in
November 1985, showed that the veteran was seen for chest and
back pains between the fifth and seventh rib area, which had
been present for a week or two. There was a history of
palpitations which were controlled with Inderal, but no
evidence of any cardiovascular signs or symptoms. On
examination, the veteran's blood pressure was 116/78 and no
cardiovascular abnormalities were noted on examination.
Subsequent blood pressure readings were as follows: 118/76 in
January 1986; 118/72 in March 1986; 124/86 December 1986;
142/80 in December 1987; 124/82 in August 1988; 112/74 in
February 1989; and 124/78 in March 1989.
A report dated in June 1989, indicated that the veteran was
taking Inderal for heart palpitations for over ten years, and
that he had no problems with palpitations for some time. The
veteran complained of cold hands and feet, but denied any
cardiovascular problems. On examination, his blood pressure
was 154/82 and, on repeat, was 140/84. The assessment
included history of palpitations, under control with Inderal,
and blood pressure just at borderline. Similar complaints
and findings were recorded on an outpatient note in February
1991. No cardiovascular abnormalities were noted on
examination at that time.
An outpatient note dated in November 1991 indicated that the
veteran was started on 10 mg. of Lotensin a few weeks earlier
for control of his blood pressure. A clinical note dated in
April 1992, showed the veteran's blood pressure was well
controlled with Lotensin and that the dosage was reduced to
5mg. per day. The assessment was hypertension.
While the veteran asserts that he was diagnosed with
hypertension in service, there is no objective evidence of
any symptoms, findings, or diagnosis of hypertension until
1986, some 33 years after his discharge from service.
Although the evidentiary record included numerous private
treatment records from 1985 to 2005, the records did not show
any abnormal blood pressure readings prior to June 1989. At
that time, the veteran denied any cardiovascular problems,
other than a history of palpitations.
The fact that the record does not reflect that any
complaints, findings or diagnosis of hypertension until some
33 years after service, weighs against the finding of a nexus
between any current condition and service. Maxon v. West, 12
Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober,
230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to
consider the veteran's entire medical history, including a
lengthy period of absence of complaints]; see also Forshey v.
Principi, 284 F. 3d 1335 (Fed. Cir. 2002) ["negative
evidence" could be considered in weighing the evidence].
While the veteran is competent to provide evidence of
observable symptoms, he is not a medical professional
competent to offer an opinion as to the nature or etiology of
any current claimed disability. Espiritu v. Derwinski, 2
Vet. App. 492 (1992); Barr v. Nicholson, 21 Vet. App. 303,
(2007); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Where
a determinative issue involves medical causation or a medical
diagnosis, competent medical evidence is required. Grottveit
v. Brown, 5 Vet. App. 91, 93 (1993).
As there is no credible medical evidence of record suggesting
a connection between the veteran's current hypertension and
service, and no credible evidence of any manifestations or
symptoms until 33 years after service, the Board finds no
basis for a favorable disposition of the veteran's claim.
Accordingly, the appeal is denied.
The benefit of the doubt has been considered, but there is
not an approximate balance of positive and negative evidence
regarding the merits of the issue on appeal. Therefore, that
doctrine is not for application in this case because the
preponderance of the evidence is against the veteran's claim.
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Service connection for hypertension is denied.
____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs